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Tuesday, March 12, 2013

Always
fascinated, albeit troubled, by the intriguing and often corrupting twists and
turns of constitutional development, I happened upon the seemingly esoteric “doctrine of
incorporation” which should be of more than passing interest to those of us who
honor the Constitution and extoll the virtues of the 2nd Amendment.

Unknown
to most is the fact that at the Republic’s inception the Bill of Rights, the
first ten amendments to the Constitution, was ratified by the States to
limit the powers of the federal government—NOT the powers of the States. This founding principle was
reaffirmed by the Marshall Court’s unanimous ruling in Barron v Baltimore in 1833. However, because the States were so
closely invested in and supportive of the foundational principles and liberties
enshrined in the Constitution, States had routinely applied the Bill of Rights
within their jurisdictions without federal judicial intervention or
congressional interference.

All
that changed with“ratification” of the 14th Amendment in 1868 when
States were suddenly and gratuitously prohibited by the federal government
from depriving any of its citizens of life, liberty or property without due
process. This would be fine and entirely lawful were it not for the glaring
historical realities that 1) the 14thwas improperly ratified, thus
in violation of the Constitution itself, meaning that the 14th is
simply and categorically unlawful, and 2) that, as said, the Bill of Rights was
originally intended to limit federal—not State powers.

To
wit, despite the 14th's lofty intention to protect the civil rights of
emancipated slaves in all states, as constitutional scholar Dr. Gutzman
noted,“The Fourteenth Amendment was never constitutionally proposed to the
States by Congress and never constitutionally ratified by the States”. (Without
getting into the nitty-gritty here, for an instructive and detailed analysis of
the 14th's rigged ratification process, I refer you to pages 128-133 of Dr.
Gutzman’s “The Politically Incorrect Guide to the Constitution”. It’s a sobering
eye-opener.)

In
effect, with "ratification" of the 14th the Bill of Rights was, by
fiat and for purposes of political expediency, incorporated against the States.
Whether a good thing or bad thing, it is still unconstitutional and the result
has been an unbroken stream of errant and intrusive judicial rulings which,
over the years, has piled one violative ruling atop another—we fondly dub that stare decisis—effectively nullifying
original intent and rendering the foundational doctrine of State sovereignty
increasingly irrelevant.

Rather
than relying upon the will of the citizens of the various States to determine
what does and does not violate the Constitution within their sovereign
territories, the federal judiciary has successfully, albeit illegally, usurped
State jurisdiction and authority. This has resulted in our having permissively
elevated the standing of the Supreme Court to that of an arbitrary modern day
Delphic Oracle whose infallible--and often tragically unintelligible--pronouncements
are routinely deified by an ignorant and disengaged citizenry. In effect, the
Supreme Court has eclipsed the constitutional authority of the States, but, in
many ways, of Congress and the Executive as well. NOT AT ALL what the framers
had envisioned!

As
Thomas Jefferson warned in 1820, “to consider the judges as the ultimate
arbiters of all constitutional questions [would be] a very dangerous doctrine
indeed, and one which would place us under the despotism of a [judicial]
oligarchy”. And that’s precisely where we find ourselves today. And permitting Congress broad authority to dictate gun rights throughout the country is nothing short of insane.

With
particular respect to the 2nd Amendment, and despite the National
Rifle Association's best intentions to protect a citizen's right to keep and
bear arms, NRA’s relentlessly pushing the federal government to impose
conceal-carry reciprocity agreements among the States or to extend blanket
protection to all American citizens of their right to keep and bear arms serves
little more than to invite the ravenous fox into the proverbial chicken coop.

So,
yes, while the Supreme Court’s McDonald v
Chicago ruling (which extended the right of all citizens to keep and bear
arms) is hailed by 2nd Amendment advocates, we should also be
mindful that what we permit the feds to give can also be taken away.

In short, if the State is sovereign, and the 2nd Amendment is
intended to restrain the federal government, then by what stretch of logic and
commonsense should we entrust the federal government to faithfully uphold the
rights of citizens in all the States to keep and bear arms? Obviously, we
can’t! As can be seen, Feingold and Company are already attempting a mindless
curtailment of gun ownership in each and every State. So much for States
restraining the federal government from infringing our gun-bearing rights, huh?

And, f

inally,
there’s the disturbing issue of Gov. Cuomo’s assault on our inherent right to keep and bear arms.

While
44 State Constitutions specifically uphold a citizen’s right to keep and bear
arms, NY’s Constitution does not. Strictly speaking then, since, from the
originalist standpoint, the feds have no constitutional authority to dictate
gun control in NYS, and since there is no specific right to keep and bear arms
in the NYS Constitution, decisions regarding gun ownership and any limitations thereto in NYS
remain the sole province of the citizens of NYS. Thus, though self-defense is,
in my humble opinion, a God-given right which trumps both State and federal
law, I still strongly suggest that NYS citizens insist that the NYS Constitution be amended to include a
provision which specifically prohibits the State from in any way infringing a
NYS citizen’s right to keep and bear arms. (And while they're at it, they would do well to ensure that the 10th Amendment language is adopted as well.)

As
this "doctrine of incorporation" illustrates, we’ve certainly made mincemeat of
the Constitution, and in the process we’ve created mountains of needless
uncertainty, contradiction and jurisdictional confusion, all of which serve
only to either obliterate or erode individual liberties. My advice: we’d best
get back on solid constitutional footing—and soon--or the vacuum of lawlessness
created by this jurisdictional muddle may well be filled by political opportunists
driven by motives other than purely republican.

“To preserve
liberty, it is essential that the whole body of the people always possess arms
and be taught alike, especially when young, how to use them.”Richard Henry
Lee, Letters From The Federal Farmer,
# 18 (January 25, 1788)

"The best
we can hope for concerning the people at large is that they be properly
armed."Alexander Hamilton,The
Federalist Papers at 184-188

"And
that the said Constitution be never construed to authorize Congress ... to
prevent the people of the United States, who are peaceable citizens, from
keeping their own arms.... "Samuel
Adams

“The said
Constitution [shall] be never construed to authorize Congress to infringe the
just liberty of the press, or the rights of conscience; or to prevent the
people of the United States, who are peaceable citizens, from keeping their own
arms; or to raise
standing armies, unless necessary for the defense of the United States, or of
some one or more of them.”Samuel Adams, Debates & Proceedings in the
Convention of the Commonwealth of Massachusetts (February 6, 1788)

“Are we at last
brought to such an humiliating and debasing degradation that we cannot be
trusted with arms for our own defense? Where is the difference between having
our arms under our own possession and under our own direction, and having them
under the management of Congress? If our defense be the real object of having
those arms, in whose hands can they be trusted with more propriety, or equal
safety to us, as in our own hands?” George Mason

“The rights of
conscience, of bearing arms, of changing the government, are declared to be inherent
in the people.”Fisher Ames in letter to F.R. Minoe (June 12, 1789)

About Me

Retired 2003 as Assoc. Dir. Refugee & Immigration Services in Rochester. A Vietnam veteran (Captain, Infantry/Civil Affairs/Psy Ops), spent many years in Southeast Asia, Africa, Subcontinent managing disaster relief and development projects. Am a small businessman and keenly interested in history and the Constitution. Concerned that our country is being inexorably drawn toward Socialism and that Americans are unwittingly abandoning our founding governing principles and, in the process, our liberties, way of life and economic vitality. Disillusioned with the radicalized Democratic Party, became a member of the Greece and Monroe County Republican Committees until July 2012 when I became a registered member of the Conservative Party. Although politically conservative and a constitutional originalist, I welcome all constructive opinions. Only through common-sense dialogue, objective evaluation of opposing patriotic viewpoints, and a studious adherence to the Constitution can we all learn and develop responsible positions which will benefit our Republic. Member of Rochester Conservatives, the Tea Party, American Legion, Vietnam Vets of America, Gun Owners of America, NRA.